BANNER v. MOUI/I`ONe 11
remove the ambiguity of the description. But in this case it turns
out that he has no land at all. There is, therefore, no ambiguity or
imperfect description, but simply a mistake of the testator, who un-
dertook to devise property of which he supposed himself to be the
owner, but was not.
The plaintiffs are claiming title under the will to a piece of per-
sonal property; namely, a head-right certihcate. There are not two
head·right certificates to which the words of the will equally apply,
nor is the description of the certificate which the plaintiffs claim
true in part and incorrect in part. The certihcate is not referred
to at all in the will, in the remotest manner. But the plaintiffs
offer to show by parol evidence that the testator, if he had no land
which filled the description contained in the devise, intended them
to have the certificate. This is not removing a latent ambiguity.
In the language of Chief Justice Tmnsn, it amounts to the making
of a new devise for the testator, which he is supposed to have omit-
ted. Its effect, if allowed, would be to show that the testator was
mistaken in reference to the condition of his property, and to intro-
duce into the will words not used by him, to obviate the consequences
of the mistake. In fact, the plaintiffs, by the testimony offered, seek
to introduce into the will an additional provision to the effect that
if the head-right certificate purchased by the testator of Ewing had
not been located, then instead of near 1,500 acres of land in Ellis
county, the testator bequeathed to the plaintiffs the head-right cer-
tificate. This would ·not be the removing of an ambiguity for the
purpose of giving effect to the will of the testator as he had written
and executed it, but the making of another will for him. If the
testator desired to make any such disposition of the certificate, in
case it had not been located, he should have expressed his desire by
proper words in his will, duly executed. But his will contains no de- _
A vise of- the certificate. The plaintiffs,. under the pretext of removing
a latent ambiguity, seek to establish such a devise for the testator _
by the testimony of witnesses, given 16 years after his death, to their
recollection of the testator’s verbal declarations. I think this is a
case for the enforcement of the rule which excludes parol evidence
to alter or add to the terms of a will.
I am, therefore, of opinion that the evidence offered should be ex-
cluded. Without its aid the plaintiffs show no ground for the relief
prayed in their bill. It must therefore be dismissed, at their costs;
and it is so ordered.
McCormick, J`., concurred.